Tuesday, January 31, 2006

News Flash!

Thursday, January 26, 2006

Let's spruce this place up with a Nerdy Time

Ok guys, this latest edition of nerdy time is based on a sad story (like most torts hypotheticals) and is meant to resemble a first year Torts hypothetical. I thought it was interesting and was wondering what other peoples take on it would be.


You have 1 hour to complete the exam. You may not consult any other materials besides the casebook or an outline that you substantially prepared on your own or with a member of the class. When time is called, stop writing. Writing beyond the time allowed is a violation of the honor code.

You may begin. Good luck.

You are a first-year associate at Gigantic & Huge L.L.P. here in Fakeville, State of Allen. Mr. Bigcheeseparterner comes to your office one idle Friday afternoon and states that they have this Torts issue with ACME Inc, a huge trucking company, and he can't help at all because his main area of expertise is business transactions. He wants you to write a memo discussing the rights and liabilities based on the following factual scenario.

(For your convenience, he has stated that he doesn't need it until 4:00 p.m. It is now 3:00 p.m., which gives you exactly one hour to create the memo based solely on your extensive knowledge of Tort Law.)

While driving truck for Acme, Inc, Dick Driver was involved in an automobile accident. He ran into a father and his 7 children while they were parked behind a school bus on a narrow stretch of highway in central Allen. All of the van's occupants died at the scene.

The investigative reports indicate the following facts:

The accident occurred at 11:12 a.m. The weather at the time was partly cloudy, but there was no rain and the street was dry. The speed limit on the two-lane highway was 60 mph. The School bus was stopped in order to drop off three children.

Kurt Childs, a 15-year-old boy with a learning permit, was the driver of the mini-van. . His father, Arthur Childs, was located in the rear of the mini-van in order to take care of his 6-month-old daughter, Anne Childs, who recently developed terminal cancer. Also, he wanted to keep a close eye on the other five children in the car. They ranged in age from 2 years to 12 years. With Billy Childs, being the second oldest boy. Jean and Bobby, "the twins" who just had their 9th birthdays. At 5 is, Nancy Childs a precocious tot who dreams of being a dancer. And the two-year-old Jimmy, a wide-eyed toddler who was playing with his new Dora the Explorer flashlight at the time of the accident. Allen law requires a driver with a learners permit to have an adult in the adjacent seat.

Mr. Driver was driving a load of eggs for Acme from Fakesville down to Nowheresville, Allen. He has stated that he was driving around 55 mph and the in cab recording instruments indicate that this is true. Mr. Driver has had 7 driving related citations over the past 12 years. The most recent citation was for speeding 10 mph over the posted limit. However, 6 years ago, he received a drunk driving citation while operating his truck for Spacely Inc. (Acme's rival trucking company).

On the morning of the accident, Mr. Driver had been on the road for 12 hours and was 1 hour away from his drop off. Allen law proscribes that truck drivers are only to drive for 12 hours without a break.

Mr. Driver testifies that he was adjusting his CB radio when he looked up and saw the van parked, but didn't notice the school bus. He further states that he honked his horn prior to slamming on his breaks. He stated that he was hesitant to forcefully apply the breaks because he didn't want to ruin his load of eggs. He went to apply the breaks, but was too close. The next thing he remembers is the face of the emergency personnel who arrived after the crash.

Mr. Driver was not the only witness to the event. One of the three 8 year olds who were getting off the bus witnessed the horrifying scene. Tate Newhouse describes a truck flying down the road and then honking his horn. He describes the truck as slamming directly into the back end of the van without slowing down at all. He says he doesn't remember much after that. He says he remembers the faces of the kids playing and then the blood. He is obviously in a state of shock over the incident and will require years of therapy to recover.

At 1:37 p.m. the grandmother of the children, Nancy Armstrong, was informed by her daughter, Sally Childs, that her entire family was killed in a car accident. Upon hearing the news Nancy suffered a fatal heart attack and died. Nancy was a Cardiologist at Allan State Hospital.


Please discuss Acme's rights and liabilities relating to the ineveitable lawsuit that will be filed by Sally Childs on behalf of her family and grandmother.

Friday, January 20, 2006

Jeff Buckley

Todd,

I've been listening to him and I find him amazing and I just wanted to say thanks for turning me on to him.

I've been looking around and it seems he has a album called "mystery white boy"? Is that true?

I guess we won't be seeing much of eachother this semester. That sucks. I trust your classes are going well.

Did you grow a fu manchu? It looked like it when I saw you in Property the other day? How's crim law going?

Anyway...later dog

Vote Pitts

It looks like they're starting voting today for professor of the year. I'll vote Pitts. You would too, if you were a true American.

Tuesday, January 17, 2006

Literature Review on Jury Decision Making

by Kelly Hoffart
for CTA-399
December 15, 2003

Literature Review


The American practice of trial by jury is central to our idea of justice. The Seventh Amendment of the Constitution states, in part, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” It is sufficient to believe that since this is one of the original ten amendments that even the founding fathers believed that it was essential in order for true justice to be served. But why do we see it as such an indispensable factor in serving justice? Do they really make better decisions than judges? How do they make their decisions? And what factors affect their decisions?

In jury trials, there is still a need for a judge to moderate the trial and to make sure that the laws for trials are being followed. But this can have unwanted effects. A judge’s apparent bias can affect the outcome of a trial (Blanck, Rosenthal, & Cordell, 1985). And the influence of the judge is not necessarily overt, it is usually manifested in much more subtle ways. Blanck, et. al. (1985) says, “trial judge’s expectations for trial outcome can predict the manner in which the judge delivers instructions to the jury...and may predict and possibly influence the outcome of jury trials” (p. 92). Their expectations may also influence the courtroom climate (Blanck, et. al. 1985). Blanck, et. al. (1985) found that the defendant’s record relates to the degree of nonverbal influence exhibited by judges, although this is often information that the jury is not allowed to see. This is especially complicating for appeals, because non-verbal behavior is not recorded, and appeals courts usually only look at transcripts of the trial.

So, since judges influence the outcome of the trial anyway, why not skip the jury? Do they really make better decisions? A major assumption is that putting six to twelve people in a room together to solve the problem will come up with a better solution than the average of the whole group (Ellsworth, 1989). However, there are many critics of jury trials, especially in civil cases (Vidmar, 1989). One of the problems that critics often cite is that the better educated jurors and jurors with expertise pertinent to the case may be excused from the case or challenged during voir dire (Ellsworth, 1989), thereby making the jury incompetent. But, these critics rarely put forth a standard for competence (Ellsworth, 1989).

Would a judge make a better decision? Vidmar (1989) found that juries reached the same verdict as a judge would have on his own in 78% of 3000 cases. In cases of discrepancy, the jury will be more likely to favor the defendant, and isn’t it better to let a guilty man free than to imprison an innocent one?

So, since we’ve established that juries do make decisions at least as good as a judge’s, then we need to understand how it is that juries make their decisions? A common answer to this question is that jurors create stories (Diamond, Casper, & Ostergren, 1989, Ellsworth, 1989, MacCoun, 1989, Pennington & Hastie, 1986). Pennington and Hastie (1986) found that evidence is evaluated as it fits into a plausible story, and any gaps between testimonies are filled by a plausible story. The stories themselves are based on cause-effect reasoning (Pennington & Hastie, 1986). Ellsworth (1989) found that “deliberation seems to work quite well in bringing out the facts and arriving at a consensus about their sequence. Errors are corrected, and irrelevant facts and implausible scenarios are generally weeded out” (p223).

So, the jurors rarely disagree on the facts (Ellsworth, 1989). The relevant issue at hand is the law. The stories themselves are directly related to elements of possible verdicts (Pennington & Hastie, 1986), and the verdict is specifically how the law applies to the facts. Votes are only likely to change when discussing the law, and, though they take the law seriously, juries may not be able to understand it (Ellsworth, 1989). The jurors may also act as a mediator between the law and the norms of the community (Diamond, Casper, & Ostergren, 1989). According to Reskin and Visher (1986), “facts and values in a trial are intertwined in jurors’ decisions” (p. 435). Is not applying only the law a problem? Possibly not, as the writers of the Constitution undoubtedly intended jury trials to partly balance community norms with the law.

But the verdicts may not be important if the stories are biased. Pennington and Hastie (1986) brings up a relevant problem: do the jurors construct a story and then decide a verdict, or vise versa? The first vote of the jury almost always determines the outcome of the deliberations (MacCoun, 1989), in fact, this is true in over 95% of cases (Tanford & Penrod, 1986). According to MacCoun (1989), conformity pressure is a major issue in jury decision-making. This finding was corroborated by Tanford & Penrod (1986). At least the jurors that want to acquit have more leverage (MacCoun, 1989), so they should be more likely to err on the side of “not guilty.” And there are other undesirable factors in jury decision-making, although they are more important when the prosecution’s case is weak (Reskin & Visher, 1986).

One of these is the attractiveness of the defendant. Darby and Jeffers (????) found that defendants that are more attractive are convicted less often and punished less severely, since the jurors see them as being more trustworthy and happier. The jurors’ own attractiveness interplays with this effect. Unattractive jurors punish unattractive defendants less severely, since they feel they have something in common, while all jurors seem to favor attractive defendants (Darby & Jeffers, ????). In effect, this makes moderately attractive defendants the most vulnerable to severe sentences. But this is not any different from a judge’s decision, as they are also affected by the attractiveness of the defendant (Downs & Lyons, 1991).

Jurors are also prejudiced racially. Gordon (1990) found that jurors are more likely to view the cause for the crime as an internal one if it matches demographic stereotypes, i.e. blacks are more likely to commit armed robbery and whites are more likely to commit fraud. This causes them to recommend longer sentences. And the juror’s own race affects their sentences. Overall, “black subjects...gave significantly longer sentences regardless of defendant race” (Gordon, 1990, p. 981).

Prior juror experience is also an unwanted factor in the process of jury decision-making. Himelein, Nietzel, and Dillehay (1991) found that juries with more experience tend to give harsher sentences. They believe that this could be caused by a loss of their belief in the concept of “innocent until proven guilty.” Previous experience with the prosecutor (they are more likely to see the same prosecutor multiple times than the defense attorney) may also cause the jurors to trust him more. Not only that, but when they become more familiar with the judge’s instructions, they are more likely to disregard them (Wiener, Habert, Shkodriani, & Staebler, 1991).

One of the ways that courts try to reduce jury bias is by blindfolding the jury to evidence that would be “unduly biasing” (Diamond, Casper, & Ostergren, 1989, p. 248). They may also blindfold the jury to parts of the law, as in 50% rules for comparative negligence cases and trebling rules.

Review of Methodology


The major problem with jury research is methodology. The Supreme Court has ruled that it is illegal to make any recordings or observations of actual jury deliberations. This has led to major complications in getting externally valid results from jury research. Many researchers have avoided this by simply comparing the results of jury deliberations with other factors, leading to high validity but to low understanding of the actual deliberation process. Other researchers have found ways to create artificial jury conditions, which leads to a good understanding of the process but to low external validity.

Tanford and Penrod (1986) used actual trial videotapes and videotaped mock juries in groups of six. They used content analysis and self-report measures. The juries were allowed one hour to deliberate.

Using actual trial videotapes does a great deal to improve external validity for the study. An artificial trial situation would have almost no external validity whatsoever. There is almost no other alternative to using this method. The only major disadvantage is that it is still not an actual trial, so the jurors may not take it as seriously, but there seems to be no way around this. The content analysis seems to be well-implemented, and the self-report measures are a valid measure of juror certainty. The major problem with this study is that they only allowed one hour for deliberations. If the jurors would be willing to spend more time, then the researchers should allow it to improve external validity, as a normal jury would not be so limited. This is the most important mistake that the researchers made.

Wiener, Habert, Shkodriani, and Staebler (1991) used summaries of trial transcripts, in which they changed some of the included information for different groups of mock jurors. They administered self-report measures to measure the jurors’ decisions.

The use of summaries of transcripts leads to less external validity. In this case, it is almost necessary, however, because they were adding and removing different elements to the case to find effects of each element. It would have been better to use trial videotapes and edit them to show the desired elements. Using a self-report questionnaire seems to be good to find out individual juror differences, but it does not show us anything about how this works in real deliberations, since the jurors were not even asked to deliberate. This study would have benefited from videotaped and content coded deliberations that would have taken place after all the elements in the original study.

Reskin and Visher (1986) coded trial data in actual trials, and interviewed the jurors for each of these trials. This seems to be an externally valid study. Since they used actual trials and the jurors for those trials, there are no problems with validity in this regard. Interviews are preferable to any other self-report measures. This study represents the most externally valid of all research designs legally available. The only weakness of this study is that the actual deliberations could not be observed, and so it is still difficult to test the actual deliberation process.

Darby and Jeffers (????) generated used mock cases and self-report measures to test their hypotheses. This is a perfect example of what to avoid in testing jury decision making. Completely mock cases may have no external validity whatsoever, and the offenses contained within the mock cases were not realistic since none of them would result in an actual jury trial. They would have been better off using real court transcripts for the purpose of this study. The self-report measures without any deliberations provide little validity in the results, since there could have been some change in opinions during the deliberation process. They should have proceeded with a deliberation process and re-administered the questionnaire afterwards.

Himelein, Nietzel, and Dillehay (1991) used actual trial information, including verdicts and sentences. This type of study has no problems with external validity, and is excellent for finding overall trends. This type of study, though valid, can’t tell us anything about the actual process of jury decision making, and is difficult to control for specific variables without enough trial information.

These studies cover the variety of research methods employed in studying jury decision making. They highlight the best and worst of all methods and their relationship to external validity. They also point out the need to consider what the study is meant to determine in creating a research design. If the research is intended to study the deliberation process, mock jurors are needed and the participants should go through an actual deliberation process. If the research is intended to find trends without studying the process, actual trial data is needed, et cetera. But two things must be true to ensure external validity: actual trial data needs to be used, and deliberations cannot be ignored. Any use of summaries of transcripts or of artificial trials are the biggest threat to validity, and videotapes are preferable to transcripts. Self-report measures cannot replace the deliberation process, as a number of important things happen during this process. If at all possible, actual trials and jurors should be used.

I would actually recommend that the Supreme Court reconsider their ban on recording deliberations. They would simply have to set up a method to approve research and to protect the jurors. If this were possible, then truly valid studies of jury decision making could be conducted, and we would understand what happens in the deliberation room. Until then, my recommendations should be followed in any research on the subject.

REFERENCES
Blanck, P. D., Rosenthal, R., & Cordell, L.H. (1985). The appearance of justice: judges’ verbal and nonverbal behavior in criminal jury trials. Stanford Law Review, 38, 89-151.
Darby, B. W., & Jeffers, D. J. (????). The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Society for Personality Research, ??, ???-???.
Diamond, S. S., Casper, J. D., & Ostergren, L. (1989). Blindfolding the jury. Law and Contemporary Problems, 52, 246-267.
Downs, A. C., & Lyons, P. M. (1991). Natural observations of the links between attractiveness and initial legal judgments.PSPB, 17, 541-547.
Ellsworth, P. C. (1989). Are twelve heads better than one? Law and Contemporary Problems, 52, 205-224.
Gordon, R. A. (1990). Attributions for blue-collar and white-collar crime: the effects of subject and defendant race on simulated juror decisions. Journal of Applied Social Psychology, 20, 971-983.
Himelein, M. J., Nietzel, M. T., & Dillehay, R. C. (1991). Effects of prior juror experience on jury sentencing. Behavioral Science and the Law, 9, 97-106.
MacCoun, R. J. (1989). Experimental research on jury decision making. Science, 244, 1046-1049.
Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision making. Journal of Personality and Social Psychology, 51, 242-258.
Reskin, B. F., & Visher, C. A. (1986). The impacts of evidence and extralegal factors in jurors’ decisions. Law & Society Review, 20, 423-438.
Tanford, S., & Penrod, S. (1986). Jury deliberations: discussion content and influence processes in jury decision making. Journal of Applied Social Psychology, 16, 322-347.
Vidmar, N. J. (1989). Empirical research and the issue of jury competence. Law and Contemporary Problems, 52, 1-8.
Wiener, R. L., Habert, K., Shkodriani, G., & Staebler, C. (1991). The social psychology of jury nullification: predicting when jurors disobey the law. Journal of Applied Social Psychology, 21, 1379-1401.

Saturday, January 07, 2006

Ah...satisfying smoke and wind

I too am satisfied with my grades...Especially because I kept up a pretty healthy social life last semester which I didn't my First year...Congrats to all of you...It's nice to know they won't be able to kick us out for a while. My ConLaw grade didn't live up to my (or Todd's) high expectations, but I at least am deemed competent! :)...

See you all in a couple days and Kelly we need to decide what we want to do about Poker night :)...

Yes! I have been upgraded from "Nitwit" to "Competent" (Alas, not "Expert")

And congrats, Kelly, on solid tax grade! You are an inspiration.
Grades are finally up on WAM. You guys may have been right about how I would do in Con Law and Evidence, but the best news of all is a freakin' B in Tax. I don't know how that happened.

Sunday, January 01, 2006

Good Movie

Jon, (and Kelly, too)

I'm not sure you are checking your blog so I post this here as well.

Check out a movie called "Happy Accidents" - at the Blockbuster on 16th downtown.
I know you will like it. Only 7 days left!